Pilman v. New York City Housing Authority

• Citation: 214 F.Supp.2d 325
• Decision Date: 25 February 2002
• Docket Number: No. 96 Civ.3893(RMB)(RLE).,96 Civ.3893(RMB)(RLE).
• Parties: Toby PILMAN, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Defendant.
• Court: U.S. District Court — Southern District of New York

214 F.Supp.2d 325

Toby PILMAN, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Defendant.

No. 96 Civ.3893(RMB)(RLE).

United States District Court, S.D. New York.

February 25, 2002.

Toby Pilman, New York City, pro se.

Mark F. Walter, of counsel, New York City Housing Authority, New York City, for defendant.

ORDER

BERMAN, District Judge.

I. Background

Pro se Plaintiff Toby Pilman ("Plaintiff" or "Pilman") commenced two civil rights actions against her former employer, the New York City Housing Authority ("Defendant" or the "Authority"). The first suit, filed August 11, 1994, alleged discrimination based on race and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII") and 42 U.S.C § 1981. The second suit, filed May 23, 1996, alleged discrimination based on disability in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (the "ADA"), and retaliation in violation of Title VII. By Order dated September 26, 2000, the Court granted Defendant's motion for summary judgment on the racial discrimination and two retaliation claims and denied Defendant's motion for summary judgment on the disability discrimination claim.

On March 29, 2001, the Authority filed the present motion to dismiss pursuant to Federal Rules of Civil Procedure ("Fed. R.Civ.P.") 12(b)(6), 37(b)(2)(C), and 41(b).¹ United States Magistrate Judge Ronald L Ellis, to whom the matter was referred, issued a Report and Recommendation, dated July 23, 2001 ("Report"), in which he recommends that Defendant's motion to dismiss be granted. See Report at 2 ("I respectfully recommend that NYCHA's motion to dismiss be GRANTED pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.") (emphasis in original). On September 10, 2001, Plaintiff filed a "Motion to Oppose Report and Recommendation for Summary Judgment/96 Civ. 3893 from Hon. Ronald L. Ellis, U.S.M.J.," which the Court is treating as objections pursuant to Fed.R.Civ.P. 72(a) ("Objections").

For the reasons set forth below, Defendant's motion is granted.

II. Standard of Review

A district judge reviewing a magistrate judge's report may adopt those portions of the report to which no "specific written objection" is made, so long as those sections are neither clearly erroneous nor contrary to law. Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y.1997), aff'd, 136 F.3d 313 (2d Cir.), cert. denied, 525 U.S. 983, 119 S.Ct. 448, 142 L.Ed.2d 402 (1998). The Court must conduct a de novo review of those findings to which a party has made a timely written objection, but is not required to conduct a de novo hearing. See, e.g., East River Savings Bank v. Sec'y of Hous. and Urban Dev., 702 F.Supp. 448, 453 (S.D.N.Y.1988). Thereafter, the court may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate Judge. See DeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y. 1994), aff'd. 77 F.3d 578 (2d Cir.), cert. denied, 519 U.S. 824, 117 S.Ct. 83, 136 L.Ed.2d 40 (1996).

In addition, the Court must liberally construe the claims of a pro se litigant. See, e.g., Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995) (a court should "read [plaintiff's] supporting papers liberally, and will interpret them to raise the strongest arguments they suggest"); Dais v. Lane Bryant, Inc., 203 F.R.D. 115, 117 (S.D.N.Y.2001) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) and Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)).

III. Analysis

The Court has reviewed the Objections and the documents attached thereto, along with the record herein and applicable legal authorities, and has conducted a de novo review. Magistrate Judge Ellis correctly concluded that Plaintiff's disability discrimination claim is untimely. See Report at 7 ("Pilman's ADA claim is time-barred.").²

A. Timeliness

The ADA incorporates by reference the limitations period set forth in Title VII (42 U.S.C. § 2000e-5(e)(1)) for employment discrimination actions. See 42 U.S.C. § 12117. In New York, the limitations period for filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") is 300 days. See 42 U.S.C. § 2000e-5(e)(1). Allegedly discriminatory incidents not timely presented to the EEOC will be timebarred in a plaintiff's subsequent federal action. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir.1998) ("Because [pro se plaintiff] filed her sex-discrimination charge ... on December 27, 1991 her Title VII cause of action would normally include any incidents alleged to have occurred in the preceding 300 day period; thus, any incidents alleged to have occurred prior to March 2, 1991, would be time-barred under Title VII."); Miller v. Int'l Tel. and Tel. Corp., 755 F.2d 20, 24 (2d Cir.1985) ("[Pro se plaintiff's] 300 days to file with EEOC therefore expired more than half a year before he actually filed his ... EEOC complaint, and as a result, he forfeited his right to sue under the [Age Discrimination in Employment Act].").

Plaintiff's charge of disability discrimination was filed with the EEOC on October 10, 1995 (the "Charge"). Plaintiff is, therefore, barred from asserting any claims of discriminatory conduct which occurred before December 14, 1994, i.e., 300 days before she filed the Charge. Because the Authority notified Plaintiff by letter, dated September 2, 1994, that her employment had been terminated, Plaintiff's claim, which is based on allegations of discriminatory discharge occurring more than 90 days before December 14, 1994, is untimely.

Nor is Plaintiff's claim saved under the "continuing violation" doctrine. See Harris v. City of New York, 186 F.3d 243, 248 (2d Cir.1999) ("There is indeed a `continuing violation' exception to the normal knew-or-should-have-known accrual date of a discrimination claim when there is evidence of an ongoing discriminatory policy or practice, such as use of discriminatory seniority lists or employment tests.") (citations omitted). Judge Ellis correctly found that Plaintiff's reference to February 22, 1995 (the date of a psychiatric report determining that Plaintiff was unfit to resume her duties) did not establish a continuing violation extending the limitations period. See Report at 6-7 ("Failure to be reinstated in one's previous position of employment, however, does not constitute a continuing violation."); Flaherty v. Metromail Corp., 235 F.3d 133, 137 (2d Cir.2000) ("In discriminatory discharge cases, then, the illegal act is often the decision to terminate the employee, and the limitations period begins to run on the date that the employer gives definite notice of that decision to the employee."); Cavallaro v. Corning, Inc., 93 F.Supp.2d 334, 339 (W.D.N.Y.2000) ("An employer's failure to reinstate a plaintiff who alleges discriminatory treatment does not give rise to a continuing violation. Were that the case, an employee who stopped working because of an employer's allegedly discriminatory conduct and whose claim would otherwise be time-barred could easily circumvent the ADA's 300-day filing requirement simply by attempting to return to work.").

B. Failure to Comply with Court Orders

Defendant has also sought dismissal of Plaintiff's disability discrimination claim pursuant to Fed.R.Civ.P. 37(b)(2)(C) and 41(b), for Plaintiff's failure to comply with discovery orders and failure to prosecute her case. As detailed in Defendant's moving papers and in the Report, Plaintiff has demonstrated an unfortunate unwillingness and/or inability to comply with discovery requests, even when directed to do so. See Report at 8 ("[T]he Court held a conference with the parties on December 5, 2000 ... NYCHA requested that Pilman sign a release for her Housing Authority Employee Assistance Program (`EAP') files. Def.Mem. at 7. The Court found that these files were relevant to Pilman's ADA claim. Pilman indicated that she did not believe that NYCHA was entitled to any further discovery and did not intend to comply. The Court cautioned Pilman that failure to sign a release would result in this Court recommending to Judge Berman that the case be dismissed."). Plaintiff initially ignored Judge Ellis's discovery directive. Id. ("Pilman refused to comply with the Court's oral directive and as a result, on December 12, 2000, this Court issued a written order instructing Pilman to provide a signed release. On December 29, 2000, Pilman finally signed a consent form authorizing NYCHA to review her EAP files.") And, Plaintiff has (still) not appeared for her deposition, noticed for January 31, 2001.³ See Order dated Jan. 10, 2001(RLE) (directing Plaintiff to appear for deposition).

IV. Conclusion

The Court adopts the Report in all material respects and incorporates it herein by reference. For the reasons stated herein and therein, Defendant's motion to dismiss is granted.

The Clerk of the Court is respectfully directed to close this case.

REPORT AND RECOMMENDATION

ELLIS, United States Magistrate Judge.

I. INTRODUCTION

Pro se plaintiff Toby Pilman ("Pilman") brought these two actions against her former employer, defendant New York City Housing Authority ("NYCHA"), alleging various civil rights violations. Pilman filed the first complaint on August 11, 1994, claiming discrimination based on race as well as retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII") and 42 U.S.C. § 1981. Pilman filed a second complaint on May 23, 1996, claiming discrimination in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. ("ADA") and retaliation in violation of Title VII.

On September 26, 2000, District Judge Richard M. Berman granted NYCHA's motion for summary judgment with respect to Pilman's racial...